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The Supreme Court has rendered itself well nigh invisible in modern substantive patent law. The Court of Appeals for the Federal Circuit, created in 1982, has become the de facto supreme court of patents. In those rare patent cases when the real Supreme Court has materialized, the Court has left behind a largely uninspiring jurisprudence when winnowed down to those cases dealing directly with substantive patent issues, the jurisprudence is paltry indeed It is not entirely surprising that the Supreme Court maintains such a low profile in patent cases. Besides traditional judicial disenchantment with patent cases, factors such as the Court's historical trend away from a court of general error correction, the current structure of the federal judiciary, and simple practical considerations such as caseload pressures, point away from robust Supreme Court involvement in patent law.

Because Supreme Court review is essentially discretionary, it is increasingly rare for the Court to hear an argument concerning Intellectual Property rights. However the Supreme Court will critically review cases that belong in one of four distinct categories. These include cases in which: (1) lower court decisions conflict, (2) lower courts have departed from accepted and usual court proceedings, (3) an important federal question is decided, and (4) lower courts have departed from Supreme Court precedent. This article provides practitioners with some guidance in determining whether the Supreme Court is likely to review a lower court decision on an Intellectual Property issue.

The U.S. Supreme Court plays a crucial role in the field of intellectual property ("IP") as the final arbiter of IP rights based on federal law.1 This means that the Supreme Court provides ultimate guidance in most core areas of IP law, including patents,2 copyrights,3 trademarks and trade dress,4 which are governed by federal statutes. While many states may still have statutes on their books or common law precedents governing IP rights in the fields of patents, trademarks, trade dress and unfair competition, for the most part federal law is clearly dominant in these areas today.5 Federal IP law is based either on federal statutes providing for exclusive coverage in areas such as patents and copyright,6 or practical recognition that federal law provides all the relief necessary, making parallel state law claims superfluous. One notable exception to this federal law dominance is the law of trade secrets, but even here, new federal statutes are beginning to encroach in this area by providing alternate bases for protecting against trade secret theft.7 Given the Supreme Court's preeminent role the field of IP rights, it is important to understand the basics of advocacy and presentation of cases before the Supreme Court, particularly when dealing with IP cases. For many years now, most of the Supreme Court cases have been essentially discretionary, based on its certiorari jurisdiction.8 Since the beginning of the Rehnquist Court in 1986, that discretion has been exercised only in limited circumstances. This is reflected in the fact that since the late 1980's, the Supreme Court has only been agreeing to hear argument in roughly seventy-five to eighty cases each Term, rather than the 150 or more that were typically reviewed each year during the Burger Court years.9 In the past decade, a total of fewer than twenty-five of these cases involved IP rights in some fashion or another. That means the Supreme Court hears argument, on average, in only two or three IP cases each year, with no cases being heard in some years. How the Supreme Court goes about deciding which cases to hear when dealing with issues involving IP rights requires an understanding of the Supreme Court's review process, together with a brief review of some of the cases it has heard in this area. This article provides practitioners with some guidance in the area of Supreme Court review of IP cases.

“Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’ Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.”

— Chief Justice John Roberts, dissenting in Massachusetts v. EPA (2007)1

In describing the virtues of the common law’s method of incremental rule development, Richard Epstein once noted that it “has hidden resources that are all too easily overlooked by scholars who start with some grand claim” for the institution.287 Nowhere is this phenomenon more apparent than in the world of intellectual property law, long thought to be entirely about federal statutory regimes that center around one or more core values. In their focus on these regimes, discussions of the subject have altogether ignored the utility and significance of common law intellectual propertyand, as I have argued, without sufficient justification.

Pragmatic incrementalism, the method of lawmaking that common law intellectual property regimes employ, influences both the structure and content of the law. As a form of common law rule development, it generates rules and principles from within the reality of a bilateral dispute presented to a court. Additionally, it emphasizes the virtues of beginning the process without looking to an abstract theory to justify the outcome, of focusing on the context for a rule, of understanding the short- and long-term consequences of a rule, and of proceeding with caution, one case at a time. These virtues can indeed be identified with several techniques that courts routinely adopt when applying and developing common law intellectual property rules. The continued vitality and robustness of these regimes under state law is in many ways a result of courts’ use of these techniques to address many of the substantive and structural issues that continue to haunt traditional intellectual property.

Given the legal, administrative, and constitutional implications in classifying a patent as a public right, the distinction between public rights and private rights is not a hoary formalism that is merely haunting twenty-first-century court cases. In fact, the dichotomy between public rights and private rights will continue to be a highly contested issue in the coming years as more cases arrive at the Supreme Court from the PTAB. Oil States guarantees this by limiting its holding only to the legal determination of a vested patent's validity under the separation of powers and Seventh Amendment doctrines.131 In fact, Oil States concludes by expressly refraining from deciding any Due Process or Takings Clause challenges against the PTAB,132 which is the legal equivalent of an open invitation for future lawsuits raising these issues.

An active debate about the legal status of patents has existed since the first Patent Act of 1790. Since Congress enacts the patent statutes as one of its many delegated powers, the public right versus private right distinction -framed usually in terms of a privilege or property right-has been a hotly contested issue in the policy debates about the nature of patents from the early American Republic.133 This policy and legal debate is an undeniable fact of the historical record, and it continues to this day.134 Yet, it is equally undeniable that the dominant approach by Congress and by courts, at least until recently, has been a private law model for the U.S. patent system, securing patents as private property rights.135

The reality of modern IP law thus diverges from the conventional constitutional allocation of lawmaking authority: Congress passes statutes, the executive branch implements them, and the federal judiciary interprets them in adjudicating cases and controversies. By contrast, intellectual property reflects a mixed heritage in which courts, operating in what can most aptly be characterized as a common law mode, came to play a principal role in fleshing out and evolving terse early legislative enactments. Although Congress has partially codified several of these judicial doctrines, the courts continue to play a central, although contextually variable, role in the evolution of IP law. As newer aspects of patent and copyright law have taken on greater legislative specificity, the mix between common law and statutory interpretation has shifted. Nonetheless, it would be a mistake to presume that legislative directive has supplanted the judiciary’s “common law” role in many important areas of federal IP law. This chapter traces the development and evolution of federal IP law. The history can usefully be broken out into three principal, although somewhat overlapping, phases: (I) the formative period, during which the courts fleshed out the early formulations with relatively broad and deep strokes; (II) the codification period, in which Congress integrated jurisprudence into statutory text while leaving more limited room for judicial innovation; and (III) the modern period, in which interest group politics has generated some highly detailed provisions. The final section of this chapter sketches some of the ramifications of this history for statutory interpretation.

Most intellectual property law today is statutory. Patent, copyright, and trademark law in the United States are today codified at the federal level.' Nonetheless, an unappreciated reality of U.S. intellectual property, across different regimes, is the fact that, despite this codification, courts continue to play an extremely important role in developing the law gradually. This process is seen in a variety of contexts: when the statute is silent and consciously delegates the development of a rule to courts, when the statute is ambiguous and necessitates judicial creativity to give it meaning and purpose, when the statute does not cover all of the doctrine in an area, or indeed when a regime is developed by state courts, completely independent of both federal and state legislative enactments. Each of these realities gives the lie to the idea that intellectual property (IP) lawmaking is within the exclusive purview of legislatures, and several chapters in this volume explore different dimensions of

"judge-made" IP law.

Common law intellectual property has thus far received little systematic analysis. While scholars have long studied individual common law regimes to understand their place in the overall intellectual property framework, 23 hardly anyone has sought to examine the one unifying factor that connects these different regimes-their genesis in the common law. What does it mean for an intellectual property regime to have originated in the common law?

First, it implies that judicial decisions are the principal source of legal rules for the regime. The common law is judge-made law.2 4 This is not the same as statutory interpretation, where judges fill gaps in a statutory enactment. In the common law, the absence of legislation is seen as an active delegation of lawmaking power to courts. Courts extrapolate rules and principles from their prior decisions, applying them to the specific dispute at hand. In the process, the court fashions a new rule or exception by drawing from disparate areas of tort, contract, restitution, and property law relying entirely on logic and experience. 25

To be sure, substantive canons of statutory interpretation do have their drawbacks. Especially when they draw upon the Constitution as a source of inspiration or authority, substantive canons represent a form of stealth constitutional law.8 5 Aggressive interpretation of intellectual property statutes may open a back door to the very sort of active intervention that courts routinely forswear when they are asked to pass on the constitutionality of these enactments. After all, the very existence of federal intellectual property rights means that Congress has seen fit to grant some measure of "exclusive Rights," and courts must respect the exercise of legitimate legislative prerogative. Even the substantive canon prescribing narrow construction of public grants by the government to private parties,8 6 the traditional canon that most closely resembles the intellectual property canon I am proposing, is not an inexorable command to foreclose private access to public lands and other government-owned resources. Public grants can sometimes be liberally interpreted when private benefits have been given in order to expedite some sort of great public purpose, such as the construction of the transcontinental railroad.8 7 Similarly, the intellectual property canon should not uniformly constrict proprietary grants or facilitate the reckless award or extension of rights in intangible property,8s but rather should be flexible enough to counsel either the enhancement or reduction of proprietary protection, as the societal interest in the creation and dissemination of inventions warrants.

6.1.5 Apply enforcement efforts both to infringement of copyright and to violations of limitations and exceptions.

While penalties for intellectual property infringement are mandatory under the TRIPS Agreement, and most developing countries have implemented in their domestic laws such penalties, including criminal penalties, it is unheard of in most developing countries to penalize a copyright owner who asserts a copyright claim that exceeds the scope of the right, or that clearly violates a limitation or exception. In some developed countries, courts have recognized a doctrine of “copyright misuse,” where a copyright owner who abuses the copyright privilege is precluded from enforcing the copyright until the abusive conduct has been stopped.168 Developing countries may lack the strong judicial systems to create and apply such non-statutory limits on a copyright owner, but they do have administrative agencies that could devise simple rules to ensure that enforcement efforts apply to both the rights and the limitations on copyright.

When institutions are compared, judicial decision making seems neutral, less prone to the biases and capture of the political processes of the legislation and administration, and representative of the rule of law. At the same time, courts are often requested to make or interpret the law using the facts of the disputes at hand. As a result, they are likely to respond to the technological facts more quickly than the legislative. In comparison to the opportunism of the self-interested actors, and the contestability of the market, courts seem to provide neutrality and impartiality. Courts, when insulated from undue outside interferences, are independent from biases to which political processes are often subject. Independent courts thus play a central role in the classic understanding of the rule of law. It is often claimed that courts will either apply clear and well-articulated rules or standards, provide authoritative interpretations, or make law to fill the gaps in the law. While, formally, courts in civil law countries do not make law, courts and judicially-crafted norms form an important part of the evolution of IP law. Although statutory definition and grants of rights are important sources of authorities, doctrines created by courts have dominated IP law. IP law tends to include open clauses and technologically-neutral statutory expression. Such generality of regulation is demanded by the nature of IP law as the regulation of technology has to deal with obsolescence over time. One frequently employed legislative technique is to include open or general norms to future-proof the text of the law. As a result, courts are often given the task of creating specific meanings. In common law countries, a courts’ discovery of law is almost expected, although the scope may vary. One result of the tendency to rely on courts to articulate specific meanings of general law norms is the potential for judicial activism. In the EU, this has been a source of controversy where the structure of referral of questions about the interpretation of EU law leads to the CJEU actively making the law and creating autonomous EU IP norms

On the whole, there is no reasonable basis to contend that the Supreme Court does not understand patent law. Rather, the segments in the patent community pushing this contention seem to mistake policy disagreements for misunderstanding by the Supreme Court. This mistake, even if one primarily of rhetoric, has potentially negative consequences for understanding the role of patent law, promoting productive debates about patent law and policy, and preserving the Supreme Court’s legitimacy in patent law and patent law’s (perhaps limited) contribution to the constraints imposed by legal authority.

The need to artistically discuss and present famous marks has led courts to develop different schemes to balance the competing interests of the artist and mark holder. While inconsistencies exist between the circuits, modern courts have adopted several “internal mechanisms to address issues of free expression [in trademark infringement and unfair competition claims].” This Note recognizes the Rogers test as the most equitable solution, but this Section also explores other methods of granting First Amendment protections in the trademark realm. Some courts have gravitated to an alternative avenues approach, analyzing whether there is a way to comment on a trademark without infringing on the mark. Other courts restrict their analysis to likelihood of confusion test alone. Additionally, some courts have adopted the transformative use test from right of publicity precedent. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinemas, Ltd., the plaintiff sued for trademark infringement when the Dallas Cowboys Cheerleaders service mark and uniform were used in a sexually explicit film, “Debbie Does Dallas.” The defendants argued for an extension of the fair use doctrine in copyright law to the trademark context. However, the Dallas Cowboys court found that the fair use doctrine was inapplicable to trademark claims. Conversely, in L.L. Bean, Inc. v. Drake Publishers, Inc., the court refused to apply the Lanham Act to noncommercial speech. This approach has a basis in the Lanham Act’s “use in commerce” requirement. Yet recent court interpretations of the “use in commerce” standard have rendered its application “beyond recognition.” While commercial speech should do “no more than propose a commercial transaction,” mixed artistic and commercial speech reside in a hybrid area of First Amendment protection. In effect, some courts have found a use in commerce where the plaintiff’s sales have been affected or the plaintiff can prove the defendant acted with the intent to injure the plaintiff. However, a website that promotes a movie, while expanding upon the cinematically created universe, may fall in a protected area of artistic speech. Disregarding the confusion among commercial and noncommercial speech, the U.S. Court of Appeals for the Second Circuit found the use in commerce approach inadequate in protecting the “public against flagrant deception.” Instead, the Second Circuit found it necessary for courts to strike a balance between the “public interest in avoiding consumer confusion [and] the public interest in free expression.” Parsing the difference between commercial and expressive uses becomes quite challenging in practice. Product placement is a common occurrence in popular films and television shows, but sometimes its inclusion can be vital to plot and characterization. For example, the Netflix series Daredevil uses a Fordham Law sweatshirt to change audience perceptions of a cynical district attorney. On the other end of the commercial-expressive spectrum, the blockbuster film Batman v Superman: Dawn of Justice includes a blatant commercial for Turkish Airlines that does not add any relevant artistic value to the film. Oliver Stone’s World Trade Center falls somewhere in the middle of the spectrum: Stone’s final cut included “the shadow of American Airlines Flight 11 pass[ing] across a Zoolander billboard as it plummet[ed] toward the North Tower.” While Stone considered this a veiled attack at “launching such a silly movie in the direct wake of an American tragedy,” many saw Zoolander’s inclusion as an advertisement because Paramount released both movies. As these examples suggest, directors utilize marks for artistic relevance and social messages in unclear ways that may not always be apparent to judges. Ambiguous, creative expression creates a subjective standard that forces courts to weigh the artistic views of the creator, audience, parties to a lawsuit, and even the judges themselves. Some courts have chosen to rely on a descriptive or nominative fair use defense in cases in which the unauthorized use has resulted in a likelihood of confusion. Under descriptive fair use, an artist may use a mark in a non-trademark descriptive category. To avoid a constitutional question, some courts have chosen to drudge through the nominative fair use defense. Nominative fair use protects a referential use that strictly identifies a mark owner or an owner’s product or services. In these cases, there is “no descriptive substitute . . . [as] many goods and services are effectively identifiable only by their trademarks.”

Second, in addition to this wide-ranging "common law" creation of patent doctrines, courts have created substantive doctrines in interpreting and applying statutory provisions in the Patent Act. These judicially-created doctrines become "the law" that is subsequently applied by courts. Patent law is replete with them. For example, the "all elements rule" in comparing a patent to a product or process in finding either literal or equivalents infringement is found nowhere in § 271; it is derived from a judicial construction of the phrase "patented invention" in this statutory provision.'12 Once liability has been determined in an infringement action, courts have similarly construed § 284's mandate that a "reasonable royalty" be paid to patent owners, creating the competing legal rules of full market value" or the smallest saleable patent practicing unit."4 Neither of these phrases is in the statute. Additionally, there is the Georgia-Pacific test,"s the infamous fourteen-factor test for assessing a reasonable royalty that Judge Richard Posner has characterized as "baloney."" 6 In court opinions for the past four decades, the Georgia-Pacific test reigns supreme as the substantive doctrine for awarding a reasonable royalty under § 284-"7 Yet one will search in vain for any multi-factor tests set forth in the otherwise generalized language in § 284. These are but a few examples of what is an otherwise ubiquitous legal fact in U.S. patent law-it is judicial opinions, not statutory provisions, that are the reference point for judges, lawyers and scholars in identifying and applying "patent law."

Another well-known example is the four-factor test created by the Supreme Court in 2oo6 in eBay Inc v. MercExchange, L.L.C. for determining the propriety of issuing an injunction under § 28318 Similar to the multifactor test derived from the judicial "interpretation" of § 284 in awarding a reasonable royalty, one will search in vain for any multi-factor test set forth in the otherwise generalized language in § 283, which provides that patent owners "may" obtain an injunction on a finding of infringement. Moreover, despite the eBay Court's assertion that it was only applying a well-established, "historical" four-factor test for issuing a permanent injunction,"9 remedies scholars have noted that there was no four-factor test used by equity courts in issuing permanent injunctions.-o Thus, eBay is another example of the judiciary creating a new rule in patent law entirely out of whole cloth. These are just a few highlights of untold examples in patent law of "common law"- style judicial construction of the Patent Act in the creation and application of non-statutory legal doctrines.

The courts have understood what the Congress-and, evidently, many of the theorists-have not: If, as seems likely, MIM rather than IM correctly describes the universe of available and appropriate trademarks, then the economic argument that trademarks ought to be protected because they are information-economizing devices justifies only the common law system of rights that flow from, and are coextensive with, use of the mark. But the economic argument cannot easily justify nationwide exclusive rights upon registration, and cannot justify at all the shift from a use-first system to one that permits application upon a showing of intent-to-use. I do not say that these provisions cannot be justified on any ground; I say only that if MIM rather than IM is true, they cannot be justified on the ground that trademarks lower consumer search costs. Thus, the courts were right to do what they did in curbing the excesses of the Lanham Act. Not until the would-be proprietor of a mark enters a market should it ever be permitted to exclude others from using the mark in that market. Until that time, the mark should remain a part of that market's language, free for others to use as they wish. The concern about building national markets is hardly frustrated by this rule: As a firm prepares to take its mark national, as through an expanded advertising campaign, it can then gain its nationwide rights. But as long as its use is purely local in character, its protection should be local too. And if the firm has never used the mark at all, then its protection should not exist. IV. PROPOSALS FOR REFORM The trouble with trademark is clear. The question for those who are troubled is what can be done about it in the wonderful world of the TMRA. After all, the Revision Act was passed just over a year ago, and the pressures to conform to the practices of the rest of the world are of course quite substantial. So it would be foolish to suggest what seems the obvious solution, that the intent-to-use system be repealed. More practical advice is needed to harmonize the certainty of the TMRA with the plausibility of the notion that MIM rather than IM is true. The practical advice that I offer is of two kinds-advice for the courts, and advice for the Commissioner. To understand the advice, it is first necessary to go back over some ground. The economic model of trademark law as lowering search costs is consistent only with a regime in which negative uses are not permitted. The Lanham Act by its terms did permit purely negative uses-the registrant could restrain junior users in separate markets-but the courts properly put a stop to that. The principal theoretical variation between the TMRA and the previous law is that the new Act permits what are in effect purely negative uses of a mark upon application for registration. Finding a judicial solution to the problems of the Revision Act will not be easy, partly because the new statute is so slippery (no injunctions, just an admonition, a word to the wise) and partly because it is so clear (a bona fide intent to use is enough). Indeed, the TMRA's unfortunate combination of clear assurances and vague restrictions creates a dangerous instability. The instability is reflected in the examples that I have already discussed, the seeming erosion of the doctrine of abandonment and the potential eradication of the prohibition of assignments of marks in gross-two cornerstones of the trademark law under the ancien regime, when rights flowed from use. Also endangered is the rule that injunctive relief is available only in markets that the proprietor of the mark has actually entered. Only the courts-and perhaps the good sense of the Patent and Trademark Office-can prevent trademark law from tumbling further down the slippery slope from economizing on information toward warehousing trademarks. Along that line, I have three somewhat modest proposals, which I here sketch lightly, recognizing that they deserve more detailed consideration than I offer.

Well-known trademarks have a marked influence on our economy, our society, and our daily lives; the recognition of well-known trademarks is a topic of great concern for relevant industries and all circles of society. In recent years, courts across the land have recognized a good number of wellknown trademarks and protected the well-known trademark owners’ legal rights, resulting in a favorable societal effect. Of course, a few new situations—new problems—have emerged over the course of adjudicating well-known trademark recognition. These problems require further research and standardization; judicial standards need to be refined and unified; the law needs to be correctly applied. Courts must grasp the proper guidance for determining well-known trademarks. The determination of “well-known trademark” status for trademarks reaching a degree of fame is only a prerequisite fact for bestowing special legal protection; it is a factual determination. Deviating from a determination of the facts of the case in accordance with the established law to pursue honorary titles, the effectiveness of advertising, and other commercial valuations would cause a change in the well-known trademark determination system. It would give rise to a series of unhealthy effects and negative influences. Courts at every level must accurately understand the original meaning of the established law when determining well-known trademarks; they must grasp the correct direction and ensure the correctness and public acceptance of judicial determinations. They must guide and protect the healthy development of the well-known trademark determination system and earnestly safeguard the positive image of the people’s court in making legal determinations of well-known trademarks. Courts must strengthen their focus on strict application of the law in judicial determination of well-known trademarks. First, courts must grasp the scope of judicial determination of well-known trademarks. A determination of a well-known trademark must have support in the text of the law—it must be based on trademark law and the relevant judicial interpretations. A court may only determine a well-known trademark in adjudication of cases involving protection of registered well-known trademarks across categories, requests to enjoin infringement of unregistered well-known trademarks, and trademark infringement and unfair competition civil disputes relating to domain name and well-known trademark conflicts. Courts must carry out a strict investigation in accordance with the law of whether the parties have a trademark infringement dispute and make sure that case adjudication requires the determination of a well-known trademark. Courts may not make determinations of well-known trademarks when the case is outside the scope of a determination or if the plaintiff fails to make a prima facie case, even if a determination is within the scope the infringement complaint. Second, courts must maintain the principles of passive determination and case-bycase determination. Determining a well-known trademark must occur after the plaintiff has already alleged a clear interpretation of the facts as a basis for suing the defendant for infringement; the court may not rely on its own authority to independently make a determination. A determination made would only be binding as to the disposition of the particular case. Third, courts must reasonably determine the scope of protection for well-known trademarks. As for the scope of protection for well-known trademarks across categories, courts should make reasonable determinations based on the specific situation of the case; they should consider factors such as the trademark’s degree of fame and distinctiveness and the misleading consequences of the defendant’s behavior. Protection cannot turn into unprincipled protection covering all categories. Unregistered trademarks seeking determination as well-known should first conform to the regulations of the trademark law governing the requirements of trademark creation. Courts must strengthen their focus on the facts governing judicial determination of well-known trademarks. First, courts should be strict in determining whether a true dispute exists. An adjudicating court should conscientiously verify the defendant’s status and relevant behavior; it should prevent sedulous efforts to create disputes for the purpose of gaining wellknown trademark status. Second, courts should correctly apply determination standards for well-known trademarks. Article 14 of the trademark law stipulates the relevant factors to be considered when determining a well-known trademark. When a court determines a wellknown trademark, it must proceed according to the facts of the case and carry out a comprehensive examination as to whether the request to designate a trademark well-known is in accord with legal requirements; it should avoid isolated, one-sided considerations of the relevant factors. A recognized well-known trademark at the very least should have a relatively high degree of market recognition in most regions in the domestic market; it should be familiar to the relevant public. Courts may appropriately lighten a party’s burden of producing evidence when its trademark’s degree of recognition has truly reached universal recognition. Third, courts should carry out a case-by-case examination in accordance with the law for trademarks that have already been designated as well-known. If parties dispute over a trademark that has been determined well-known by an administrative supervising body or by a court, they should produce relevant evidence; further, the court should evaluate and determine in accordance with the law whether the trademark conforms to well-known trademark qualifications. Courts must strengthen supervision and guidance for determining well-known trademarks. Courts must strictly carry out the system of filing and recordation for well-known trademark recognition. The court granting recognition should timely and in accordance with relevant regulations provide a record for review by the Supreme Court after the judgment goes into effect. Every higher-level court must take up the responsibility of providing overall guidance for well-known mark recognition and supervision of specific cases. They must conscientiously research, compile, and timely report on problems and situations that arise. They must rectify improper ways of doing things in strict accordance with the law and avoid deviations in work. As for cases where disputes were intentionally created to obtain well-known trademark recognition, those cases that can be discovered should be treated according to Article 102 of the Civil Procedure Law,28 which governs harmful litigation behavior, and previous rulings and recognition of well-known trademark status should be withdrawn in accordance with the law.

The Supreme Court was also unusually active in the area of copyrights this past Term. In the widely publicized American Broadcasting Companies v. Aereo case, the Court held that Aereo's unusual antenna-based television subscription service violated the Copyright Act's Transmit Clause. And in Petrella v. MGM, a case alleging that the 1980 movie Raging Bull copied the plaintiff's 1969 screenplay, the Court concluded that the equitable doctrine of laches cannot be used to bar a claim for copyright infringement damages that is brought within the three-year limitations period of Section 507(b) of the Copyright Act.

Finally, the Court also decided two important Lanham Act cases in its recent Term. In Lexmark International v. Static Control Components, the Court held that Static Control had adequately pleaded the requirements of a Lanham Act false-advertising claim by alleging an injury to a commercial interest in sales or business reputation proximately caused by the defendant's misrepresentation. And in POM Wonderful v. Coca-Cola, the Court ruled that a competitor was entitled to sue under the Lanham Act for unfair competition by alleging false or misleading descriptions on product labeling, even where the labeling is regulated by the FDA.[2]

Developers of generative artificial intelligence models are facing claims of direct copyright infringement in federal district courts around the country. In these cases, where so much is riding on the affirmative defense of fair use, many of the generative AI defendants are hoping for a favorable ruling on summary judgment.

Bloomberg Law dockets research found 19 copyright lawsuits against generative AI defendants that are currently pending in federal district courts. These 19 cases are filed in four jurisdictions: the Northern District of California, the District of Delaware, the Southern District of New York, and the Middle District of Tennessee. The 11 judges overseeing these cases have varying degrees of experience deciding summary judgment motions involving copyright law, according to Bloomberg Law’s Litigation Analytics tool.

Because the AI cases represent new terrain in copyright law, it is not clear how judges and juries will ultimately rule, several legal experts agreed.

While the Google Books case might work in the tech firms’ favor, the fair-use picture was muddied by the Supreme Court’s recent decision in a case involving artist Andy Warhol’s use of a photograph of the rock star Prince, said Daniel Gervais, a professor at Vanderbilt Law and director of its intellectual property program. The court found that if the copying is done to compete with the original work, “that weighs against fair use” as a defense. So the Times’s case may hinge in part on its ability to show that products like ChatGPT and Bing compete with and harm its business.

For these reasons, “the patent code, much like the Sherman Act, is a common law enabling statute, leaving ample room for courts to fill in the interstices or to create doctrine emanating solely from Article III’s province.”15 Indeed, “a significant portion of U.S. patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation of elliptical statutory phrases, or is devoid of any statutory basis whatsoever. Thus, while Congress and the courts each have a hand in constructing the latticework of patent law, judges . . . are the principal architects.”16 Even if patent law is a complex and intricate area of law, it should be comparatively easier for the Supreme Court to understand than the complex statutory and regulatory schemes on the Supreme Court’s docket because patent law features judge-made complexity and intricacy. In fact, many of the patent law doctrines that critics charge the Supreme Court with misunderstanding are the creation of the Supreme Court itself (even if not necessarily this particular composition of the Court).17 It defies reason to conclude that the Supreme Court – the top judges in the country – is incapable of understanding an area of law of which they, and their colleagues on the federal bench, are the principal authors. Perhaps the critique is more muted. Perhaps the criticism is not that the Supreme Court is incapable in theory of understanding, or has always misunderstood, the law of patents. Rather, perhaps the critique is that the Supreme Court does not understand the current body of doctrines and legal principles that govern patent law. Since 1982, patent law has been. As an initial matter, it is implausible that the Supreme Court is incapable of understanding the legal doctrines and principles crafted by the Federal Circuit. To be sure, the Federal Circuit has more knowledge of, and experience with, its version of patent law than the Supreme Court. The Supreme Court is a generalist court that handles, at most, a couple of patent cases a year, whereas the Federal Circuit is a specialized court that handles hundreds of patent cases a year.20 But that does not mean that the Supreme Court is incapable of understanding the patent law principles that do come before it. As a generalist court with a limited docket, the Supreme Court frequently has less experience with legal doctrines than the lower courts it reviews, whether the issue be criminal sentencing, administrative law, or bankruptcy. But the Supreme Court Justices (and their clerks) are highly intelligent and skilled legal minds who are perfectly capable of learning the legal doctrines and principles relevant to the cases on their docket, and there is no reason to think this is less true with patent law principles originally crafted by the Federal Circuit. After all, these principles were crafted by other judges not much different than the Supreme Court Justices – the majority of Federal Circuit judges lack a scientific background and had limited experience with patent law before joining the bench.21 Moreover, the contention that the Supreme Court does not understand the Federal Circuit’s version of patent law treats the Federal Circuit’s version as the “correct” or “true” version of patent law and the Supreme Court’s departure from it as a misunderstanding, mistake, or error.22 But the Federal Circuit is an inferior federal court, and “[t]he Supreme Court is the ultimate judicial authority on patent law.”23 Given the significant discretion Congress has given to federal courts to craft patent law, and the Supreme Court’s position at the top of the federal court system, for the most part, the Supreme Court cannot misunderstand patent law because Congress has delegated to the Supreme Court primary responsibility to define what patent law is, at least within the broad and unrestrictive boundaries of the statute and subject to normal constraints on common law decision making like stare decisis.24 In truth, critics contending that the Supreme Court does not understand the Federal Circuit’s version of patent law really mean that they prefer the public policy choices made in the Federal Circuit case law to those made in the Supreme Court decisions, a point I return to in Part III